What is `cognitive impairment`?

There is a body of literature that focuses on the effects of intellectual disability on a person's capacity to access justice. However, the Foundation's research, together with other studies, suggests that the issues people with an intellectual disability experience in relation to the law, legal assistance and legal processes can also be experienced by people with other forms of cognitive impairment, including: dementia, acquired brain injury as a result of an accident, an illness or substance abuse, mental illness and temporary periods of acute psychological distress.

In our studies these conditions appeared to affect the legal needs and access to justice of a broad range of people including homeless people, older people, people with mental health issues and prisoners. For example, the Foundation's study into the legal needs of homeless people, No home, no justice? noted:

Mental illness and other cognitive impairment including memory loss and drug and alcohol use were also identified by stakeholders in this study as significant barriers to attending court or a tribunal. These disabilities can lead to people having difficulties in organising their lives and thus remembering and making necessary arrangements for their court dates.1

Whilst The legal needs of older people in NSW reported that:

older people are more likely than other age groups to have intellectual impairments associated with cognitive disorders such as dementia and senility. In addition, older people may be more vulnerable to head or brain injuries arising from strokes or falls. All of these factors may result in diminished capacity to make decisions regarding property or financial interests, as well as various personal, health and lifestyle decisions.2

Our research has also suggested that people who are acutely affected by mental illness, psychological distress, high anxiety or certain medications could also experience cognitive impairment, even if only on a temporary basis. To illustrate, a prisoner interviewed for the Foundation's study Taking justice into custody: the legal needs of prisoners, recalled her state of mind during her first days in custody:

I didn't remember too much of the day — I felt so shocked. I got arrested and they were asking me all kind of questions, took all my stuff, and I don't really know, but, 'cause I was really shocked, and I was crying a lot. 3

Thus, the term 'cognitive impairment' is used in this paper in recognition of the broad range of disorders and states that may affect cognitive function, either temporarily or permanently.

Cognitive impairment and multiple disadvantage

Both our research and the broader literature have drawn strong associations between cognitive disability and other forms of disadvantage such as poverty/low income, low levels of education, public housing and being on social security benefits.4 It has been argued that the disadvantaged circumstances of people with a disability can increase their susceptibility to legal issues and compound the barriers to these issues being resolved.5 In Triple disadvantage: out of sight, out of mind, Jennings illustrates the point:

More often than not, women with disabilities live in a state of poverty. They are dependent on government pensions, are offered limited access to education, lack access to appropriate information on rights, experience a lack of choice in housing and transport, may be dependent on others for self-care, and live restricted social lives. It is this deprivation of experience and opportunity, and level of social and political discrimination, that renders women with disabilities more vulnerable to violence, rather than any actual experience of an 'impairment'.6

Any discussion of the legal needs of people with cognitive impairment must recognise the common experience of compounding disadvantage among this group.